Harris County Cops Will Jail You for Small Crimes Because of a Software Problem, Says DA

Nine years ago, the Texas Legislature took a bold step toward criminal justice reform that could have helped thousands of people charged with low-level misdemeanors avoid jail time, and could have saved counties and taxpayers across the state millions of dollars for not having to jail them. The bill lawmakers passed allowed officers to cite and release people accused of small-time crimes, such as possession of less than four ounces of pot or driving with an invalid license, instead of arresting and hauling them off to jail. It would be like getting a speeding ticket, then going to court for it with a lawyer.

But nine years later, out of Texas's 248 counties, only a handful have taken advantage of this law — and Harris County is not one of them. Even though Harris County officials just spent months brainstorming ways to reduce jail population in order to secure a $2 million grant from the MacArthur Foundation, implementing cite and release, which would almost certainly work toward that goal, appeared nowhere in their plans.

So why is that?

In an interview with the Houston Press last week, Harris County District Attorney Devon Anderson said that it's not because she's opposed to cite and release that Harris County cops aren't doing it. It's because of a computer software problem. Yes, scores of low-level offenders are still having to go to jail pretrial, even though the Legislature said they don't have to, because of pesky technical difficulties.

The problem is, Anderson said, unlike when writing traffic tickets, cops apprehending people on the side of the road for jailable offenses have no way of generating a court date for those people on the spot. So they wouldn't be able to simply write a ticket and let them go. Anderson said that replicating the municipal court's computer system would require overhauling the software and infrastructure for more than 80 police agencies in Harris County. “I don't even know how it would work,” she said.

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Anderson said that when she took office, she had immediately begun looking into cite and release; she wanted to implement it for low-level marijuana offenders. But that year, when she looked at Travis County's cite and release system, she decided against it: It had a 40 percent failure-to-appear rate, leading to scores of arrest warrants for those who didn't show up to court. Plus, given the software issue, Anderson decided to come up with her own version of cite and release, and that's where her First Chance Intervention Program comes in.

The marijuana diversion program lets first-time offenders caught with less than two ounces of pot off the hook in exchange for three months of community service, and since it was implemented in October 2014, it has helped more than 1,500 offenders escape charges.“When you are as fiscally challenged as we are in Harris County with every freaking thing we try to do, we were trying to find something that worked that would cost the least amount of money,” Anderson said. "And right now, First Chance costs nothing."

The primary difference between this program and cite and release is that you aren't charged at all if you agree to the terms and successfully complete First Chance. Whereas, with cite and release, even though you can go home instead of to jail at first, there's still the chance you'll be sentenced to serve time once you show up for court. Anderson said she was focused on diverting people entirely.

But here's the other glaring difference: First Chance helps one small segment of first-time offenders caught with less than two ounces of marijuana — while the Legislature's cite and release law applies to everyone charged with less than four ounces, theft less than $750, criminal mischief and graffiti less than $750, and driving with a suspended license. In 2015, that amounted to more than 14,500 people in Harris County, not including those helped by First Chance, who could have received tickets rather than being booked into jail. More than 4,600 of those people were those charged with driving with an invalid license.

Last month, Mayor Sylvester Turner's criminal justice transition team recommended that Turner hire a police chief who supports cite and release so that the Houston Police Department can start taking advantage of the law. Turner, who voted for cite and release in the House back in '07, is open to finding a way to do this, said his chief of staff, Allison Brock. Which led the criminal justice transition team to believe that now seems to be the best time to push for it. Attorney Kathryn Kase, with the Texas Defender Service, said it would be “a failure of the imagination” not to consider the benefits of cite and release, not only for low-level offenders but for the county and taxpayers financially.

But still, there are those apparent technical barriers to implementing cite and release.

Anderson did not have an estimate as to what overhauling the system in this way might cost, but the city's criminal justice transition team chairwoman, Sandy Thompson, a University of Houston law professor, said that now may be a good time to start talking about it.

"Given the tradeoff, it seems like that's something you would want to fix right away," she said. "The committee considered the fact that, in addition to cost savings to the county, unnecessary incarceration also has been shown to create greater recidivism among low-risk people, people who ordinarily would not commit new offenses. When they end up in jail, even just for a few days, it has such a destabilizing effect on their lives that they become much more likely to commit new crimes in the future."

But Anderson said she can be an impatient person — who knows how long it would take to come up with a solution to the cite-and-release infrastructure challenge? So for now, she said, she is looking for ways to expand First Chance to other crimes, such as possession of less than four ounces of weed, low-level shoplifting and possession of small amounts of controlled substances. She has already announced the last two; however, they are only available after defendants are booked into jail and charged. If Anderson were to offer all the programs pre-charge, and if police departments used more mobile fingerprinting devices so they wouldn't have to haul people into the station, these diversion programs would, in effect, work just like cite and release. Anderson said she is even considering a pilot that would expand it to repeat offenders.

As for the thousands of people who just didn't go to the DMV to renew their licenses and instead went to jail, she's exploring ways to stop incarcerating them, too.